Senior judges have overturned a decision which forced a shipping company to pay £290,000 compensation to the son of a diver who perished in tragic circumstances.
Judge Lord Sandison awarded the sum to nine-year-old Vincent Warner in a judgement delivered in September 2021 at the Court of Session in Edinburgh.
His mother Debbie raised an action on Vincent’s behalf at Scotland’s highest civil court regarding how his dad Lex lost his life off Cape Wrath in the north coast of Scotland in August 2012.
Mr Warner, 50, from Sutton Coldfield, near Birmingham and a group of friends had been making a “deep water” technical dive off a wreck.
He was onboard the MV Jean Elaine vessel in the hours before his death.
Both Vincent and Debbie sued the boat’s owners – Orkney based Scapa Flow Charters – for £500,000.
The case centred on how Mr Warner fell on board the MV Jean Elaine whilst walking in fins and sustained an abdominal injury.
The diver later got into trouble when he was in the water.
Lawyers for the family claimed that the ship’s captain Andy Cuthbertson didn’t do enough to minimise the risks which came from divers walking onboard boats whilst wearing fins.
Health and safety measures
He concluded that Mr Cuthbertson failed to put in place proper health and safety measures which would have protected Mr Warner from falling.
This prompted lawyers for Scapa Flow Charters to go to the Inner House of the Court of Session.
Appeal judges Lord Carloway, Lord Woolman and Lord Pentland were told that their colleague was wrong to find Mr Cuthbertson at fault.
In a judgment issued at the court on Tuesday, the judges agreed with the submissions made to them by Scapa Flow Charters’ legal team.
Lord Carloway wrote that Mr Cuthbertson and the firm put in place adequate safety measures.
‘Informed choice’
Lord Carloway also concluded that Mr Warner chose not to use the safety measures which were put in place by Scapa Flow Charters and that he made an “informed choice”.
He wrote: “It was sufficient in the exercise of reasonable care for the defenders to have provided a safe means of moving from the seat to the exit point in the form of a non-slip and unobstructed deck, handrails and a deckhand.
“They did this.
“Mr Warner, who was well aware of what was an obvious and inherent risk, chose not to use the provided means.
“That was a matter for his choice in the context of a leisure pursuit in which he, and not the defenders, was the skilled and experienced person.
“The defenders did not require to give such a person frequently repeated warnings about a risk of which he was already aware.
“Mr Warner made an informed choice to put his fins on at his seat and to walk in them across the deck to the exit point without using the handrails or the deckhand.
“In these circumstances, the court disagrees with the Lord Ordinary on what was required to meet the standard of care to be applied on the facts found proved.
“The reclaiming motion must be allowed.”
Diving after a fall
During proceedings, the court heard how Mr Warner decided to dive after falling onboard the boat.
It was contended during the hearing that the decision to dive resulted in him experiencing increased levels of abdominal pain due to underwater pressure which in turn led to him rapidly ascending and his eventual death on August 14 2012.
During the action, Mr Warner was described as a very experienced, careful diver who would call off even if he had a “small sniffle”.
In his judgement, Lord Sandison said that Mr Warner died because while he was at a depth of 80 metres below water, he became aware of abdominal pain.
Lord Sandison said this pain was “in consequence” of the “intra-abdominal haemorrhage suffered as a result of his fall on deck”.
Lord Sandison said that Scapa Flow should have done more to eliminate the risks which came from walking on board in fins.
However, the Inner House judges disagreed with Lord Sandison’s conclusions.
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